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10-3964 Ryan v. U.S.


10-3964 Ryan v. U.S.


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Criminal Procedure
Habeas corpus

Where a defendant failed to argue that his conduct did not fit the honest-services statute, he defaulted the argument on collateral review.

“There are two problems with an argument that Ryan has ‘cause’ for any default: one practical, one doctrinal. The practical problem is that it would not have been pointless to argue that §1346 is limited to bribery and kickbacks. Both Ryan and Skilling were tried in 2006. Yet while Ryan’s lawyers proposed instructions based on Bloom—which was more favorable to defendants than the law in some other circuits—Skilling’s lawyers contended that §1346 is much narrower if not unconstitutionally vague. Skilling asked the Supreme Court to disapprove Bloom. That Court ruled in his favor. If Ryan’s lawyers had done what Skilling’s lawyers did, the controlling decision today might be Ryan rather than Skilling. (Ryan’s petition for certiorari beat Skilling’s to the Supreme Court.)”

“Nothing prevented Ryan from making the arguments that Skilling did. Many other defendants in this circuit contended that Bloom was wrongly decided. Conrad Black was among them. See United States v. Black, 530 F.3d 596 (7th Cir. 2008). (Black’s arguments were not identical to Skilling’s, but they came closer than Ryan’s.) The Supreme Court heard Black’s case along with Skilling’s. See Black v. United States, 130 S. Ct. 2963 (2010). Because Black had preserved an objection to Bloom’s understanding of §1346, we inquired on remand from the Supreme Court whether the errors were harmless. Black prevailed in part. See United States v. Black, 625 F.3d 386 (7th Cir. 2010). But that decision was a bona fide rerun (on remand from the Supreme Court) of a direct appeal. Ryan, who has resorted to collateral rather than direct review, is not entitled to the same benefit.”


10-3964 Ryan v. U.S.

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Easterbrook, J.

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